Judicature For Rajasthan Bench High Court · 2025

Judgment

1. The instant criminal appeal under Section 374 Cr.P.C, has been preferred by the accused-appellant wherein he has challenged the judgment of conviction and sentence dated

04.01.1994 passed by the Court of learned Special Judge, Scheduled Caste/ Schedule Tribe (Prevention of Atrocities Cases), Kota (for short ‘the trial court’) in Sessions Case No. 182/92, titled ‘State v. Mahaveer’, whereby the learned trial court convicted him for the offence under Section 376 IPC and sentenced him to undergo ten years rigorous imprisonment and Rs. 2,000/- as fine and in default of payment of fine he had been directed to undergo additional six months simple imprisonment. [2024:RJ-JP:52700] (2 of 35) [CRLA-33/1994]

2. The facts of the case in a nutshell are that on

31.03.1992, the victim was keeping watch over her fields when 4 persons namely; Babulal s/o Baba Gujar, Mahaveer s/o Kishan Lal Gujar, Girraj s/o Modu Lal Gujar, Khaja s/o Kishan Lal were seen walking with their goats towards her fields. These persons left their goats in her field and the goats damaged the ‘Alsi’ being grown on her field. Thereafter, these persons started to walk away but later the accused-appellant-Mahaveer returned. The victim further mentioned that it was around 5:00 PM on the same day, she was taking her meal when the accused-appellant committed the offence of rape upon her. Upon the commission of the offence, the victim bellowed and raised alarm and the accused then took off. Thereafter, upon returning from the field she met her ‘bua’ (aunt) Kaili Bai. The victim narrated the whole incident to her ‘bua’. Once the father of the victim returned home, the victim went to the police station along with him to lodge an FIR. At around 12:15 AM in the midnight of 31.03.1992 and 01.04.1992, the victim (PW-6) submitted a written report (Ex.P7) before the SHO, Police Station, Budadhit, District Kota to this effect. On the basis of the aforesaid written report (Ex.P-7), an FIR No. 50/1992 (Ex.P-8) was registered for the offence under Section 376 IPC and also under Section 3/2/5 of the SC/ST Act. During investigation, the police inspected the place of the alleged incident, recorded the statements of the witnesses, had the medical examination of the victim as well as of the accused- Mahaveer conducted and arrested the accused-appellant. [2024:RJ-JP:52700] (3 of 35) [CRLA-33/1994]

3. The police after investigation submitted the charge- sheet against the accused-appellant for the offence under Section 376 IPC and also under Section 3 of the SC/ST Act in the Court concerned.

4. The learned trial court framed the charges against the accused-appellant for the offences under Section 376 IPC and also under section 3(2)(v) of the SC/ST Act. The accused denied all charges and opted for trial. From the prosecution side, the statements of 13 witnesses were recorded and certain documents were exhibited. The examination of the accused-appellant under Section 313 CrPC was conducted.

5. The learned trial court vide its impugned judgment dated 04.01.1994 convicted and sentenced the accused-appellant for the aforesaid offences.

Mr. Rinesh Gupta, counsel appearing for the accused- appellant submitted that conviction of the accused is neither in line with the provisions of law nor is it based off of the material placed on record. He further submitted that the trial court has not critically examined the statement of victim and has erred in coming to the conclusion with regard to her statements, as is perceivable from the contradiction in her own statements before the Court, in her cross-examination she admitted that the incident of accused person’s goats grazing in the victim’s field thereby damaging the ‘Alsi’ resulted in an altercation between the victim and the accused-appellant. Counsel further submitted that the victim sustained no injuries which is proof of the fact that the alleged incident could not have taken place. The statement of the [2024:RJ-JP:52700] (4 of 35) [CRLA-33/1994] victim has not been corroborated by PW-8 Dr. Chandra Pal Singh and PW-9 Dr. Manu Mathur. Counsel also submitted that the statement of the victim is not corroborated by any medical evidence nor is her testimony trustworthy and thus she has falsely implicated the accused in this case. Counsel also raised an issue as to the fact that the victim did not use the word ‘rape’ while accusing the accused-appellant of the concerned offence, rather she levelled an allegation of having committed ‘khota kaam’ with her. Counsel also submitted that PW-4 Kaili Bai, the real ‘bua’ of the victim to whom she is said to have narrated the alleged incident, did not support the prosecution story and turned hostile. Counsel further submitted that PW-9 Dr. Manu Mathur in his statement deposed that he is not in a position to give any opinion about the commission of rape. Thus, it is clear that the accused appellant has not committed any offence of rape with the victim. The counsel thus contends that the judgment of the learned trial Court is erroneous and is liable to be set aside. In furtherance of the same, the present appeal has been preferred by the accused-appellant.

7. On the other hand, the learned Public Prosecutor, while opposing the aforementioned submissions made on behalf of the accused-appellant, submitted that the learned court below, after taking into due consideration all the facts and circumstances of the present case and after considering the evidence placed on [2024:RJ-JP:52700] (5 of 35) [CRLA-33/1994] record before it, has rightly passed the impugned judgment and further contended that the punishment so awarded to the accused shall hold good in law.

8. Considered the submissions made at bar and also perused the judgment under challenge as well as other relevant records placed before this Court.

9. Upon extensive analysis and careful consideration of the arguments putforth by the Counsel for the accused-appellant, I deem it necessary to primarily adjudicate on certain issues and therefore frame the following issues to be decided upon:- I. Whether the victim of a sexual offence has to necessarily use a term out of the recognised vocabulary for describing the occurrence of an incident and further, if we are to believe that there is in fact an accepted terminology that the court is required to strictly adhere to while appreciating evidence pertaining to a case of sexual offence? II. Whether a person accused of a sexual offence case can be convicted on the basis of the sole testimony of the victim? III. Whether the presence of injury/injury marks is a sine qua non/ prerequisite to attribute the offence of rape to an accused or in other words whether the absence of injury/ injury marks can be treated as a valid ground for affirming the accused’s innocence. IV. Whether an FSL report has definitive evidentiary or mere probative value under the Indian criminal jurisprudence. In furtherance to the same, whether a judgment/order should be brought under scrutiny merely on the ground of absence [2024:RJ-JP:52700] (6 of 35) [CRLA-33/1994] of an FSL report, especially in the cases pertaining to prosecution for sexual offences. V. Whether discrepancies in the testimonies of the victim would amount to a material flaw in the Prosecution story and whether, when and to what extent corroboration of the testimony of a victim of rape is essential to establish the charge.

10. Before adverting to any discussions on the points of contention in the present case, preliminarily, it is relevant to allude here that this Court is aware of the fact that for decades, rape victims in India have endured an archaic and insensitive criminal justice system which has failed both, to care for them medically and to deliver justice. As per the annual National Crime Records Bureau (NCRB) report 2022, India reported an estimate of 86 rapes daily where 4 out of 10 rapes are reported, largely because of the deep-rooted conservatism of the Indian society, in which many victims are scared to come forward for fear of being "shamed" by their family and community. Those brave enough to go to the police face numerous challenges in getting their attacker put behind bars -- reporting the rape to hostile police, unsympathetic forensic examinations, a lack of counselling, shoddy police investigations and weak prosecutions in the courts. For a rape victim, lodging an FIR with the police is just the first hurdle. The procedures that follow are often even more gruelling, humiliating and traumatic for the victim. But by far, one of the most common contributors to silence around sexual assault is shame. [2024:RJ-JP:52700] (7 of 35) [CRLA-33/1994] With respect to Issue I

11. The counsel for the appellant has raised an argument as to fact that the victim did not use the word ‘rape’ while levelling allegations against the appellant, she instead made use of the word ‘khota kaam’ and P.W-4 Smt. Kaili Bai used the word ‘aadi patak di’ to accuse the appellant of the offence concerned and so the offence of rape per se cannot be attributed against the accused.

12. In this regard, I would like to make a noteworthy observation. My observation on the said issue is primarily based on my understanding of the statement- ‘words are momentary, intent is momentous’. In contemporary discussions on sexual violence, the term "rape" has become both a legal and social marker, used to describe a range of violations against women’s bodies. However, the insistence on using this specific word to define every act of sexual violence may inadvertently limit the recognition of the broader forms of harms. While the word "rape" holds substantial legal and cultural weight, it is essential to recognize that the intention behind a woman’s statement of harm, not just the choice of words, should be the focal point when acknowledging the violation of her body. In many cases, women may not immediately use the word "rape" or may choose an alternative language, familiar to her, to describe the trauma they have endured. This choice does not invalidate their experience; instead, it speaks to the complex ways in which individuals process and express profound violations. [2024:RJ-JP:52700] (8 of 35) [CRLA-33/1994]

13. The term "rape" carries with it a deep, multifaceted meaning. Legally, it is often defined as forced sexual intercourse without consent, but its societal connotations are equally significant. To be a victim of rape is to be seen as having experienced a grave violation, and the word holds a heavy burden of stigma, blame, and shame. For many survivors, the emotional and psychological toll of identifying their experience as "rape" can be overwhelming. The legal system itself often treats this term with rigidity, requiring specific definitions and evidence that might not fit every violation. Some women, especially those from marginalized communities, may not feel that their experience aligns with the strict parameters of legal definitions, and therefore might hesitate to use the word "rape" even if the violation of their autonomy and dignity is undeniable. In such cases, women, especially from rural parts of the nation may opt for alternative terminology to communicate their experiences—thus references made by less direct language or terms like “khota kaam,” “galat kaam,” “dushkaram”, “oondhi seedhi”, “jhamak jhuma”, “aadi patak di”, should also be weighed and treated at par with the generic word ‘rape’. These words are not necessarily a rejection of the severity of the act; instead, they may reflect the survivor’s internalized fears of judgment or a desire to avoid the stigma that accompanies the word "rape."

14. Language is inherently fluid, and its power lies in its ability to reflect the complexity of human experience being described by use of the concerned language. It is not always [2024:RJ-JP:52700] (9 of 35) [CRLA-33/1994] possible, nor appropriate, for every woman to use the same term to describe her experience. A survivor's choice of words might be influenced by many factors, including cultural context, personal comfort, and the nature of the violence itself. The crucial point here is that the language a woman uses to describe her experience should not detract from the recognition of the violation of her body. What matters most is the intention behind the statement—the acknowledgment of harm caused and the assertion of violation of her bodily autonomy.

15. For instance, a woman might refer to an experience of sexual violence as “unwanted touching” or “being forced into something,” and while these descriptions may not sound as severe as the term "rape," they still signify an assault on her bodily autonomy. In many cases, the survivor’s intent is to draw attention to the violation, even if they do not have the language or the emotional readiness to use the word "rape." The act of speaking out, regardless of the precise words used, is an essential step in reclaiming power over one's narrative and seeking recognition for the violation. In fact, the reluctance to use the term "rape" can sometimes be a reflection of the survivor's trauma.

16. In the present case, the victim used the term “khota kaam” to describe her ill-experience of having been sexually violated by the accused. In my opinion, the use of this word instead of using the term ‘rape’ does not disregard the possibility of actual occurrence of the alleged incident, nor does it translate [2024:RJ-JP:52700] (10 of 35) [CRLA-33/1994] to the fact that the offence so alleged did not occur at all. I believe that by asserting a notion that intention should matter more than the choice of words, we acknowledge the spectrum of sexual violence and the diverse ways women articulate their experiences. Every violation is significant, and the harm caused by sexual violence is not diminished simply because a woman did not use the "correct" term to describe it.

17. To truly support survivors of sexual violence, we must be attentive to their voices, not just the words they use. Instead of questioning or challenging a woman’s choice of language, society must focus on validating her experience and offering the necessary support. Whether a survivor uses the word "galat kaam", "khota kaam", or even a more subtle language, the message should be the same: their experience is real, their voice matters, and their body was violated. Listening to a survivor's story without judgment or insistence on specific terminology is essential in creating a supportive environment. It is critical to provide spaces where women can speak freely and feel empowered, knowing that their experience will be respected regardless of the language they use. This, in turn, helps to break down the cultural taboos surrounding sexual violence and encourages more survivors to speak out about their experiences.

18. In the instant case, the victim has consistently, throughout the period of investigation and trial, maintained her stance staunchly. Consistency is an everyday norm of judgment. It [2024:RJ-JP:52700] (11 of 35) [CRLA-33/1994] is a common test of credibility in the courts. It is to be kept in mind that consistency in statement at the various stages of a case has frequently been cited as a criterion by which the courts assess the credibility of a victim. I believe that relying on the very fact that the victim has been consistent throughout, which seems like a relatively objective measure, free of the implicit bias that could affect the credibility of judgment is arguably a better indicator of truth. The victim has at every stage gathered the strength to narrate the incident over and over again and while at it, has remained consistent all throughout. The criterion of consistency here could serve as a modest baseline for establishing a credible accusation against the accused.

19. The witnesses concerned, namely, Babulal, Girraj, Kaili Bai, had initially given their testimonies u/s 161 Cr.P.C, wherein they stated as under:- - Babulal stated that on the date of the incident, he himself, alongwith 3 others, including Mahaveer took their goats for grazing to the fields. Upon returning back from the fields, accused-Mahaveer left his goats in the jungle and went back to the fields of the victim, while the rest returned to their village. He further stated that the area around the fields in question is generally dark and deserted and at the time concerned, there was no other human being present around the area. - Girraj stated that on the date of the incident, he himself, alongwith 3 others, including Mahaveer took their goats for grazing to the fields. While at the field, accused-Mahaveer’s [2024:RJ-JP:52700] (12 of 35) [CRLA-33/1994] goats strayed away towards the victim’s father’s field, thereafter a verbal altercation ensued between the victim and the accused. Soon after, all 4 started to walk back towards their village, however, the accused-Mahaveer went back to the victim’s fields, while the rest returned to their village. But the accused was not with them. He further stated that the area around the fields in question is generally dark and deserted and at the time concerned, there was no other human being present around the area. - Kaila Bai stated that on the date of the incident, she was walking towards her fields to check on the crops when she saw the victim weeping. When asked about what had happened, the victim told her that while she was having her meal, the accused-Mahaveer had committed a wrong deed (“galat kaam”, “khota kaam”) with her as a result of which she is in pain and for this reason she is crying. She further stated that she saw visible semen stains on the ghaghri of the victim, she observed that her bangles were broken and also that the victim had visible fresh injury marks on her hands and could see the victim quite disturbed and upset over the incident. Upon a bare perusal of the statements concerned, it is evident that even the witnesses Babulal, Girraj, Kaili Bai by their statements u/s 161 Cr.P.C provide for a narrative consistent with the victim’s story. And for the same reason, the witnesses’s testimony plays an important role for the purpose of corroborating the victim’s testimony in the instant case. [2024:RJ-JP:52700] (13 of 35) [CRLA-33/1994] With respect to Issue II:

20. It is a settled law cemented with a catena of judgments that conviction can be on the basis of sole testimony of the prosecutrix. The Hon'ble Supreme Court in the case of Krishna Kumar Malik v. the State of Haryana reported in (2011) 7 SCC 130, with the same being reiterated in a recent decision of the Hon'ble Supreme Court in Ganesan v. State Represented by its Inspector of Police reported in (2020) 10 SCC 573, has observed that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided that the same inspires confidence and appears to be absolutely trustworthy, unblemished and it should be of sterling quality. Reliance can also be placed on the decisions of this Court in the cases of Santosh Prasad v. State of Bihar, (2020) 3 SCC 443; State of H.P. v. Manga Singh, (2019) 16 SCC 759; and State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.

21. The Hon'ble Supreme court, in its decision, Tameezuddin @ Tammu v. State of (NCT) of Delhi reported in (2009) 15 SCC 566, provided that in a case of rape, the evidence of the prosecutrix must be given predominant consideration,

22. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial [2024:RJ-JP:52700] (14 of 35) [CRLA-33/1994] conscience. The same has also been asserted upon by the Hon’ble Supreme Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (SCC pp. 394-96 & 403, paras 8 & 21) “8. ….The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ... ***

21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

23. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86, the Court held that rape is not mere physical assault, rather it often destroys the whole personality of the victim. The rapist [2024:RJ-JP:52700] (15 of 35) [CRLA-33/1994] degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

24. In the case of State of H.P. v. Raghubir Singh, (1993) 2 SCC 622, the Hon’ble Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by the Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC

25. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. [2024:RJ-JP:52700] (16 of 35) [CRLA-33/1994]

26. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575, it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by the court merely on the basis of assumptions and surmises.

27. It is thus well-settled by a catena of decisions of the various Courts of the country that there is no rule of law or practice that the evidence of the victim cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, where, having regard to the circumstances of the case the court may convict the accused on the sole testimony of the prosecutrix.

28. In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the [2024:RJ-JP:52700] (17 of 35) [CRLA-33/1994] same, as a rule, in such cases amounts to adding insult to injury. In paragraphs 6 and 7, it is observed and held as under: “6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See: State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]

7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires [2024:RJ-JP:52700] (18 of 35) [CRLA-33/1994] confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See: Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635)]).”

29. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full [2024:RJ-JP:52700] (19 of 35) [CRLA-33/1994] understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

30. The law thus has been reiterated firmly in several other judgments including State of Rajasthan v. N.K. The accused, (2000) 5 SCC 30; Vishnu v. State of Maharashtra, (2006) 1 SCC 283; and the recent cases of Phool Singh v. The State of Madhya Pradesh (2022) 2 SCC 74; Manak Chand @ Mani vs The State Of Haryana (2023 INSC 959).

31. It can hence be validly concluded that evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the victim, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. It is undeniable that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

32. Now so far as the submission on behalf of the accused, relying upon the deposition of the doctor that there were no external or internal injuries found on the person of the victim and [2024:RJ-JP:52700] (20 of 35) [CRLA-33/1994] therefore the prosecution case is not to be believed, as not supported by any corroborative evidence and/or that it is to be presumed that it was a case of consent is concerned, at the outset, it is required to be noted that in the present case, the victim has fully supported the case of the prosecution. She has been consistent right from the very beginning and even in the cross-examination also she has stood by what she has stated and she has fully supported the case of the prosecution. Nothing has been specifically pointed out as to why the sole testimony of the victim should not be believed. I see no reason to doubt the credibility and/or trustworthiness of the victim. In my opinion, she is thus definitively to be regarded as a credible, trustworthy, unblemished and as a witness, the victim herself is of sterling quality. With respect Issue III:

33. Absence of any injury on the person of the victim of a sexual offence should not be a factor that leads the court to absolve the accused. In the case of State of U.P. v. Pappu, (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. [2024:RJ-JP:52700] (21 of 35) [CRLA-33/1994]

34. In Sheikh Zakir Vs. State of Bihar [(1983) 4 SCC 10], the Hon’ble Supreme Court observed:- "8...The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable..."

35. In Narayanamma (Kum) etc. Vs. State of Karnataka and Others etc. [(1994) 5 SCC 728], the Hon’ble Supreme Court inter alia observed: “We view that the absence of injuries on the back of the prosecutrix can be of no consequence in the circumstances."

36. In the case of Dastagir Sab & Anr vs State Of Karnataka (AIR 2004 SUPREME COURT 2884), it was held that injury on the body of the person of the victim is not a sine qua non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot, thus, be the sole criteria for coming to a conclusion that no such offence had taken place.

37. In sum, while physical injury may sometimes be present and provide corroborative evidence in rape cases, its absence does not negate the occurrence of the crime, especially if other evidence, such as the victim's testimony, or witness statements, supports the claim of non-consensual intercourse. This is well established in the Indian judicial system. The Indian [2024:RJ-JP:52700] (22 of 35) [CRLA-33/1994] Penal Code (IPC) defines rape under Section 375. The essential elements of rape are:

1. Penetration: The act involves the penetration of the penis into the vagina, urethra, or anus, or the penetration of any object into these parts of the victim's body.

2. Lack of Consent: The sexual act occurs without the victim's consent, or the consent is obtained by force, fraud, or threat.

38. The Supreme Court of India has consistently held that the absence of physical injury is not a decisive factor in rape cases. A woman can be raped without any visible signs of injury. The lack of injury does not rule out the possibility of rape, as the crime is primarily about non-consensual intercourse or penetration. The victim may not resist physically for various reasons such as fear, shock, or coercion.

39. Another accepted view on this issue is that a medical examination is important in collecting forensic evidence (such as sperm or DNA), but it is not necessary for proving rape. The Hon'ble the apex court in the case of Rafiq vs. State of Uttar Pradesh [AIR 1981 SC 559] has observed as under:- “5. The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life-styles may fluctuate, and so, rules of prudence relevant in one fact- situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition [2024:RJ-JP:52700] (23 of 35) [CRLA-33/1994] for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstance. Indeed, from place to place, from age to age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of presidential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.”

40. This Court deems it necessary to emphasize that it is the consent or absence of consent that forms the crux of the offense, and not the presence or absence of injuries on the victim. The absence of external injuries cannot be a ground to reject the victim's version of events if other evidence corroborates the claim of rape. Rape is a personal and violent crime that often involves psychological trauma. The absence of visible physical injury does not diminish the psychological harm done to the victim. The law considers both physical and psychological harm in such cases. In India, while the presence of injury can be corroborative evidence in rape cases, it is not a prerequisite to prove the charge of rape. The primary focus in a rape trial is on the issue of consent, the occurrence of penetration, and the credibility of the victim’s testimony, as supported by any available circumstantial evidence.

41. Thus, in line with my view on this subject, in the instant case, the absence of any visible prominent injury marks does not nullify the accused’s guilt nor does it absolve him of his responsibility as far as his participation in the commission of a [2024:RJ-JP:52700] (24 of 35) [CRLA-33/1994] crime is concerned. Injuries, not only physical but also mental, have to be considered while dealing with such sensitive matters. With respect to Issue IV:

42. In legal contexts, a Forensic Science Laboratory (FSL) report typically holds probative value, meaning that it has the potential to prove or disprove a fact at issue in a case. However, it does not hold evidentiary value by itself in the strictest legal sense. Evidentiary value refers to whether the information or evidence presented is admissible in court, and whether it can be used to establish facts. A report like one from the FSL is generally considered probative (helpful for proving a case) but must be accompanied by additional factors, such as chain of custody, authentication, and competence of the person presenting the evidence, to be deemed admissible as evidence. In other words, while an FSL report might be highly relevant and support one side of the case, it can be contested, scrutinized, and even rejected if its credibility or authenticity is in question. It is the role of the court to assess the weight and admissibility of such reports based on their reliability, context, and the broader circumstances of the case.

43. In the context of Indian law, FSL reports primarily hold probative value and not evidentiary value. This distinction is crucial in understanding how forensic reports are treated in legal proceedings in India. The FSL report can be probative, meaning it is useful in proving or disproving facts related to the case. The [2024:RJ-JP:52700] (25 of 35) [CRLA-33/1994] contents of the report may support or challenge claims made by parties involved in the case, especially in criminal matters. However, it is not automatically taken as evidence that conclusively proves the facts, as it can still be contested and scrutinized during the trial.

44. Upon an elaborate analysis of the law on this point, in my opinion a few key legal considerations in India as to the admissibility of FSL Reports can be cited as under: i) The Indian Evidence Act, 1872 does not treat FSL reports as conclusive evidence. They are subject to scrutiny and may be challenged during trial. But this does not automatically grant the report evidentiary value; it still requires the court's assessment. ii) The FSL report can be contested during cross- examination. Either party may challenge the methodology, the handling of evidence, or the qualifications of the expert involved in preparing the report. iii) The credibility and reliability of the report is subject to the judge’s assessment. Even though an FSL report might provide significant probative value, the court will consider it alongside other evidence, including testimonies, physical evidence, and the circumstances surrounding the case.

45. In the case of Dayal Singh v. State of Uttaranchal; AIR 2012 SC 3046, the court reiterated that the entire objective of the forensic report or expert testimony is to provide the trier of fact with relevant information as well as to guide the court to [2024:RJ-JP:52700] (26 of 35) [CRLA-33/1994] reach a final understanding of the ‘facts’ of the case. On the other hand, the court held that such a report would not be binding upon the court, but would amount to have some value, which will be decided by the court after careful examination.

46. In my opinion, the simple reasoning behind this treatment of ‘Forensic Report’ by Criminal Justice system of the Indian Judiciary, can be attributed to the fact that the objective of the forensic report is to provide relevant fact, as to what happened, which formulates only one part of the essentials of a criminal act, that is actus reus. Forensic science can tell us what happened, but not about why and how it happened. Hence, forensic reports hold lesser evidentiary value, until and unless backed up strongly by other corroborative evidence(s).

47. Evidentiary value of a forensic expert report is tied directly with the evidence or nature of evidence put forth in the court, as was held by the Supreme Court in case of Madan Gopal Kakkad v. Naval Dubej, 1992 SCC (3) 204, wherein it was held that a medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination.

48. The issue concerning evidentiary value of DNA report has been considered by the Court in a recent Judgment reported in the case of Rahul v. State of Delhi, Ministry of Home Affairs & Anr. (2023) 1 SCC 83, wherein vide para 36 and 38 the Hon’ble Apex Court has observed as under: - [2024:RJ-JP:52700] (27 of 35) [CRLA-33/1994] “36. The learned Amicus Curiae has also assailed the forensic evidence i.e. the report regarding the DNA profiling dated 18-4-2012 (Ext. P-23/1) giving incriminating findings. She vehemently submitted that apart from the fact that the collection of the samples sent for examination itself was very doubtful, the said forensic evidence was neither scientifically nor legally proved and could not have been used as a circumstance against the Appellant-Accused. The Court finds substance in the said submissions made by the Amicus Curiae. The DNA evidence is in the nature of opinion evidence as envisaged Under Section 45 and like any other opinion evidence, its probative value varies from case to case.

38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the Accused and relating to the deceased were seized by the investigating officer on 14-2- 2012 and 16-2-2012; and they were sent to CFSL for examination on 27-2-2012. During this period, they remained in the malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion. (Emphasis supplied)”

49. In the case of Manoj and Others Vs. State of Madhya Pradesh; MANU/ SC/0711/2022 the Court held as under:- [2024:RJ-JP:52700] (28 of 35) [CRLA-33/1994] “141. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an Accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case”.

50. Thus, the admissibility and evidentiary value of a scientific evidence totally depends upon the facts, circumstance of the case, as well as the opinion of the court, pertaining to that case.

51. In conclusion, the evidentiary value of an FSL report in India is probative and a forensic report is highly unreliable and varies on a case to case basis, it can significantly contribute to the determination of facts, but it does not automatically carry evidentiary value until it meets the conditions required for admissibility in court and is backed by some other corroborative evidence. The role of expert opinion or forensic report is primarily of being a ‘relevant fact’, more than that of being an ‘evidence’. The court’s decision is the final in determining if any weight at all is to be given to give an FSL report in light of the overall evidence presented during the trial. Hence non-filing of FSL report cannot be said to be fatal for prosecution case when there is credible evidence of the prosecutrix and others. With regard to Issue V:

52. The issue holds particular importance for women in India, as they have frequently been venerated, cherished, and revered, yet have also been subjected to exploitation and denied [2024:RJ-JP:52700] (29 of 35) [CRLA-33/1994] fair justice across ages. And the said broad problem I will presently address. Being aware of the prevalent regressive and archaic ideological scenario in terms of the statements of a rape victim, discrepancies which neither go to the root of the matter nor shake the basic version of the witnesses, cannot be annexed with undue importance, only to dislodge the ever-progressing jurisprudence on rape law; more so, when the all time important ''probabilities-factor" echoes in favour of the version narrated by the victim or witnesses in general.

53. A woman in the orthodox ideological society of India would be extremely reluctant even to admit the occurrence of an incident which is likely to reflect on her chastity. She would be conscious of the danger of being treated as a cast off by the society or of being looked down upon by the society including by her own family members, relatives, friends, and neighbours. lt would inevitably and almost invariably result in mental torture and suffering to the woman. She would feel extremely embarrassed in relating the incident to others being overpowered by feeling of shame on account of· the upbringing in a tradition bound society where by and large sex is a taboo. The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence haunts her indefinitely. The reluctance to face interrogation by the agency concerned, to face the court, to face the cross examination by Counsel for the accused, and the risk of being disbelieved, acts as a deterrent. In view of these factors the victims and their relatives are not too keen to bring the accused to books. And when in the [2024:RJ-JP:52700] (30 of 35) [CRLA-33/1994] face of these factors the crime is brought to light, there is a built in assurance that the charge is genuine rather than fabricated.

54. In the present case, the accused-appellant has raised an issue with respect to the apparent discrepancy in the victim’s statements. However, in my opinion the reasons discernible for the Court to keep faith in the victim’s testimony are listed as under: (1) A victim cannot be expected to possess a photographic memory and to recall the details of an incident. We cannot humanly require a person to narrate an incident as if a video tape is being replayed on a mental screen; (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence of such a gruesome offence and hence the mental faculties therefore cannot be expected to be attuned to absorb the specific details of the incident; (3) Having faced a violation of their body and virtue, a person cannot reasonably be expected to by and large accurately recall the very words used by themselves or their aggressor or heard by them. They can only recall the plain purport of the conversation; (4) Making a reference to the exact time of an incident, or the time duration of an occurrence, by a victim of a sexual offence is an unreasonable expectation to make. And one cannot expect people to make very precise or reliable estimates in such matters; (5) Ordinarily a witness cannot be expected to recall and narrate accurately the sequence of events which took place in rapid succession or in a short time span, especially in case of sexual offences; (6) A victim or a witness in general, though wholly truthful, is liable to be overawed by the state of affairs and their state of mind, post [2024:RJ-JP:52700] (31 of 35) [CRLA-33/1994] occurrence of such an incident. The subconscious mind of the victim often operates on account of fear of being disbelieved and that of the witnesses functions on account of being retaliated against. On extensive consideration of the evidence of victim, this Court finds that she is consistent and proves the allegations.

55. Coming to the second leg of the issue, it is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances. Even otherwise, corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Viewing the evidence of the woman, who complains of rape or sexual molestation with the aid of a strainer to sieve through with small openings of doubt, disbelief or suspicion, is to justify the stance of male chauvinism in a male dominated society.

56. Moreover, as regards the hostility of the witnesses concerned, in my opinion, during the course of a trial, a witness may or may not answer certain questions which may then be [2024:RJ-JP:52700] (32 of 35) [CRLA-33/1994] regarded as an incomplete version of their story. Or the witness may at any stage of trial when called upon to testify, give only a half hearted version, either during cross examination or examination-in-chief. However, this does not ipso facto render the witness a ‘hostile witness’. The courts through various judgments have held that declaring a witness as hostile does not ipso facto result in rejection of his evidence entirely. The precedence of cases reflects it to be a well settled law made by the Hon’ble Apex court. The Hon’ble Apex Court in the case of State of U.P. v. Ramesh Mishra, AIR 1996 SC 2766 held- “it is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favor of the prosecution or the accused but it can be subjected to closer scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted." The same has also been reiterated in the case of Anbazhagan v. Superintendent of Police; AIR 2004 SC 524. Further in the case of Koli Lakhman Bhai Chanabhai v. State of Gujarat; (1999) 8 SCC 624 it was held that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record. Yet in other cases the court did not reject the testimony only because the prosecution found their witness to be hostile and cross examined the witness. Reference can be made to the judgments of the Hon’ble Supreme Court in the cases of Noorahammad v. State of Karnataka; AIR 2016 SC 679 and Rameshbhai Mohanbhai Koli v. State of Gujarat; (2011) 11 SCC 111. [2024:RJ-JP:52700] (33 of 35) [CRLA-33/1994]

57. The witnesses namely, Babulal, Girraj, Kaili Bai had initially given their statements u/s 161 Cr.P.C, upon a bare perusal and even further after careful scrutiny, it can be observed that their testimonies further the prosecution story and support the narration of incident as made by the victim herself. At a later stage, it was realized that the witnesses had turned hostile, as they refused to support the Prosecution story. However, at this stage it is pertinent to mention that it is entrenched in law that the evidence of a hostile witness in all eventualities ought not stand obliterated altogether and that the same can be accepted to the extent found unswerving, on careful scrutiny. As can be easily deduced from the statements of the witnesses u/s 161 Cr.P.C, they had all narrated incidents and brought to light such facts as could be prudently aligned with the Prosecution story. The reason for the witnesses to have turned hostile could not be cited with conjecture. But disregarding their evidence by mere reason of hostility of witnesses at a later stage, especially when they had already given a statement which can be used for corroborative purposes, does not seem to be equitable to me.

58. The Appellate Court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The Appellate Court is required to weigh the materials, ascribe concrete reasons and the reasoning must logically flow from the requisite analysis of the material on record. [2024:RJ-JP:52700] (34 of 35) [CRLA-33/1994] The duty of the Judge is to consider the evidence objectively and in a circumspect manner. The Hon’ble Supreme Court in the case of Mohan Vs. State of Karnataka; (2022) 12 SCC 619 has held that the Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty-bound to satisfy itself whether the decision of the trial court is both possible and plausible view.

59. In the light of afore-noted settled position of law, this Court has gone through the impugned judgment as well as the testimony of witnesses and the victim and having duly considered other materials placed on record. In view of the above and in my considered opinion, the prosecution story is based upon the material placed on record and the same does support the case of the prosecution. The trial Court has correctly examined, and appreciated the evidence and has given the findings and observations, which does not call for interference as same are truly justified and acceptable.

60. Thus, this Court finds no merit in the present appeal preferred by the accused-appellant against the judgment dated

04.01.1994 passed by the Court of learned Special Judge, Scheduled Caste/ Schedule Tribe (Prevention of Atrocities Cases), Kota and the same is hereby dismissed.

61. The accused appellant, who is on bail at present, is directed to surrender before the concerned Authority/Court forthwith and in all circumstances within a period of 1 month from [2024:RJ-JP:52700] (35 of 35) [CRLA-33/1994] today, so as to serve /undergo the remaining part of his sentence, falling which he shall be taken into custody.

62. The Registry is directed to send back the record of the case to the Court concerned forthwith. Arti Sharma/192 (GANESH RAM MEENA),J